Readers’ Responsa
Dear CIJR, Thank you, thank you, for your Yom Yerushalayim, 5771 Isranet Daily Briefing, which carries articles that are a gift as valuable as fresh air to one choking on some of the malaise-producing and misleading but well-parsed assertions that have come out of the office of the current U.S. President about “lines and borders.” Your articles protect us from the mendacious claims by enemies of peace, including Mohammed Abbas of the PLA/PLO, of Fatah (now joined at the hip together with Hamas, seeking approval from the UN General Assembly in September) and, sad to say, the government leaders of Latin American banana republics, along with some other African States not noted for anything resembling religious tolerance (let alone protection for minorities, freedom, or values in common with those of the U.S., Canada, and Israel).
CIJR’s publications should be read carefully by every democratically-elected representative of free world countries, as well as by their citizens, leading journalists and media, celebrities and academics, for these articles carry the ring of truth too often absent from their diplomats’ and leaders’ pronouncements. We ignore the calumny and the mendacity of Arab, Iranian, and some Islamic countries at our own peril.
Thanks to CIJR and your authors, your leadership and supporters. Important progress through your voices and commentators is being made in opposition to those referred to above. May the wisdom and accuracy of your articles and issues, published regularly, continue to inform all those who support liberty, free and representative, democratically-elected, governments, and Israel’s quest for peace through security. I trust that many more readers will rise to the occasion and continue to help you in your fine work, with material support.—Allan Levine, Ph. D. (Professor Emeritus, Psychology, California)
Dear Prof. Krantz, Thank you for writing your “Reflections on Yom Ha’atzmaut 5771/2011.” I was so moved by your words, your thoughts and your wisdom. I appreciate them so much, especially in these difficult times. I sent it on to others here in Israel who so need to hear from a voice that strengthens our links between Israel and the Jewish world abroad, and I also sent it to people abroad to lift their spirits. Many have responded that they in turn are passing it on to others. Again, my thanks and admiration.—Reva Sharon (Jerusalem)
Dear Baruch, Yasher Koach on this important and well crafted article. This notion of “sheep to the slaughter” is a desecration of our dead and of our survivors. It needs to be widely circulated among Jews as well as non-Jews. Best wishes.—Anna Gonshor (Yiddish Language and Culture Lecturer, McGill University)
Just great work. Thank you.—Robert Krell (Quebec)
STATE DEPARTMENT STATEMENT SEPARATES J’LEM FROM ISRAEL
Herb Keinon
Jerusalem Post, May 19, 2011
On the eve of Prime Minister Netanyahu’s [recent] trip to Washington, the State Department issued a bland announcement of a visit to the [Middle East] by U.S. Deputy Secretary of State, James Steinberg, in which it distinguished between Israel, Jerusalem and the West Bank.
In a “media note” to the press…the State Department released a two paragraph statement on “Deputy Secretary Steinberg’s visit to Israel, Jerusalem and the West Bank.” The wording, however, led some to wonder: Isn’t Jerusalem inside Israel, and does this odd wording presage a subtle change of U.S. policy?
A spokesman at the embassy in Tel Aviv, however, downplayed fears that this wording was an opaque signal of a change of U.S. position on Jerusalem. He denied any overarching significance in the wording, saying that in a region where there is a “great sensitivity” to words, the U.S. was “trying to be a fair interlocutor.” The spokesman also said that this formula has been used in the past in similar statements.
A quick, and by no means exhaustive, perusal of some previous statements of visits, however, did not show this pattern of Jerusalem and Israel being listed separately. Instead, what was found were the following statements:
• March 7, 2010: “Vice President Joe Biden and Dr. Jill Biden will depart Washington, D.C., for the Middle East on the evening of Sunday, March 7. They will travel to Israel, the Palestinian Authority and Jordan to discuss the full range of bilateral and regional issues.”
• October 29, 2010: “Assistant Secretary Jose Fernandez Travel to Tel Aviv and Jerusalem.”
• September 13, 2010: “Secretary Clinton Traveling to Sharm e-Sheikh, Jerusalem, Ramallah and Amman.”
• From April 20, 2011: “Ambassador-at-Large for Global Women’s Issues Melanne Verveer will Travel to Egypt, Israel and the West Bank from April 15 through April 22.…”
A SYMBOL OF OBAMA’S HOSTILITY TO A UNITED JERUSALEM
Jonathan S. Tobin
Contentions, June 5, 2011
The Obama administration notified Congress [last] Friday that, once again, it is not moving the United States Embassy to the state of Israel to Jerusalem from Tel Aviv. Although Congress mandated that the embassy be moved to the city that is actually Israel’s capital in 1995, it included a waiver that allows the law to be flouted if the president believed America’s national security interests are at stake. Such waivers have been invoked every six months since the law’s passage and they have usually been sent out on Friday afternoons so as to limit news coverage of the decision.
But while the waivers promulgated by both the Clinton and Bush administrations always noted that the embassy might be moved at some point in the future, Obama has never even sought to sweeten this bitter pill to friends of Israel with even such a vague promise.
The question of moving the embassy is something of a chestnut for both the pro-Israel community and American politicians. Everyone knows that no American president would have the guts to acknowledge reality and, at least, recognize West Jerusalem (the part of the city that was not illegally occupied by Jordan from 1949 to 1967). The Arab and Muslim world would be very mad. But the sheer irrationality of America’s refusal to do so has always infuriated friends of Israel and often gave those who wished to pander to them an opportunity to grandstand.…
[President Obama’s] decision to speak of Jewish neighborhoods in the city as “settlements” that must be frozen and his insistence on using the 1967 lines as the starting point for future negotiations as opposed to Bush’s frank acknowledgment that those neighborhoods and the surrounding settlement blocs will always be part of Israel, has put the status of Jerusalem back on the political front burner. The applause from the Palestinian Authority for Obama’s decision on the embassy illustrates the way his stand has encouraged Arab intransigence on the issue.
While both Clinton and Bush gave us the impression that they would like to move the embassy after the signing of a theoretical peace treaty with the Palestinians, Obama’s attitude is far more negative. America’s stubborn refusal to move its embassy has always been an obstacle to peace. But under Barack Obama, it is also a symbol of his administration’s hostility to a united Jerusalem.
OBAMA’S EAST JERUSALEM STANCE
REWARDS 1948 ETHNIC CLEANSING
Omri Ceren
Contentions, June 6, 2011
Last month the State Department weirdly declared that Jerusalem is separate from Israel. This month the Obama administration declined to move the U.S. embassy to Israel’s capital.… The Palestinian Authority crowed that “the world and the U.S. don’t recognize Jerusalem as the capital of Israel,” a follow-up to their calls for Arab “resistance” throughout the city.
You’d expect at least the PA to be underwhelmed, since Presidents Clinton and Bush also used to issue twice-a-year notifications declining to move the embassy. That’s certainly what Obama’s defenders are pointing out. What they’re leaving unsaid—in a rhetorical and argumentative move that neatly repeats the line that they took during the “1967 borders” dust-up—is that previous Presidents also included wording implying that the embassy would eventually be moved. Obama’s statement removed that wording, leaving only the anti-Israel part of the statement intact.
Denying Israel’s right to its united capital, of course, rests upon the idea that East Jerusalem is some kind of “settlement.” That’s the position the President took when he demanded a halt to Israeli construction in the eastern part of the city, forcing the Palestinians to follow suit and bringing the peace process to a grinding halt. It ignores how Jews have indisputably been the majority in Jerusalem since at least 1853, to saying nothing of the ancient heritage of Jewish Jerusalem. Instead, it picks out the brief period between 1949 to 1967, when Jordan ethnically cleansed East Jerusalem of Jews to interrupt a continuous 1,000-year Jewish presence.
Taking the Palestinian position means installing that atypical 18-year historical blip as the baseline for negotiations. It’s a strange choice even for someone with pretensions toward being even-handed between the victims and perpetrators of ethnic cleansing. It means siding with and rewarding Israel’s Arab enemies, who aimed for exactly this goal when they leveled the Jewish Quarter:
Colonel Abdullah el Tell, local commander of the Jordanian Arab Legion, with whom Mordechai Weingarten negotiated the surrender terms, described the destruction of the Jewish Quarter, in his Memoirs: “The operations of calculated destruction were set in motion.… I knew that the Jewish Quarter was densely populated with Jews who caused their fighters a good deal of interference and difficulty.… I embarked, therefore, on the shelling of the Quarter with mortars, creating harassment and destruction.… Only four days after our entry into Jerusalem the Jewish Quarter had become their graveyard. Death and destruction reigned over it.… As the dawn of Friday, May 28, 1948, was about to break, the Jewish Quarter emerged convulsed in a black cloud—a cloud of death and agony.…” The Jordanian commander who led the operation is reported to have told his superiors: “For the first time in 1,000 years not a single Jew remains in the Jewish Quarter. Not a single building remains intact. This makes the Jews’ return here impossible.”
The Jordanians then went on to destroy 34 out of the 35 ancient synagogues in the Jewish Quarter and to use them as hen-houses, to desecrate the ancient cemetery on the Mount of Olives and to use the gravestones as latrines, and to deny Jews access to the Western Wall and to turn the courtyard into a garbage dump. But because they succeeded in doing that for almost 20 whole years—in contrast to 1,000 years of continuous Jewish life—the Obama administration insists that the Jewish State needs to cede portions of East Jerusalem to a future Palestinian entity on demographic grounds. Very even-handed!
SUPREME COURT WILL RULE
ON CONSTITUTIONALITY OF ‘JERUSALEM, ISRAEL’
Seth Mandel
FrontPage, May 18, 2011
“Jerusalem will remain the capital of Israel and it must remain undivided,” Barack Obama told the audience at the 2008 annual policy conference of the American Israel Public Affairs Committee (AIPAC).
But now as president, Obama is put in the uncomfortable position of insisting on the enforcement of what has been American policy on the city: that it is not only not recognized as the capital of Israel, but is effectively not considered to be part of Israel at all, as far as official records are concerned. That policy—and its seeming irreconcilability with what presidents say when they are candidates—will now come before the Supreme Court.
Just as surprising, perhaps, is that the government will be up against an 8-year-old boy in the case.
The issue began when the American parents of Menachem Binyamin Zivotofsky, a young boy born in Jerusalem, petitioned the State Department to have Menachem’s passport say “Jerusalem, Israel”—as would be the case if the American government recognized as a political and practical reality that Jerusalem is the capital city of the sovereign state of Israel.
As the Washington Post reported: “‘The status of Jerusalem is one of the most sensitive and long-standing disputes in the Arab-Israeli conflict,’ the government said in its brief to the court. It is not one in which the United States has been willing to choose sides.”
But in actuality, the United States has in fact been willing to choose sides. The Palestinians have argued that they should get to sign off on any recognition of the city’s sovereignty. American diplomats prefer this side of the argument, and presidents have as well. In 2002, Congress passed a provision in a larger foreign relations bill that cleared the way for families like the Zivotofskys to request that “Israel” be put on their passports in situations like Menachem’s. President George W. Bush affixed a signing statement reiterating that American policy toward Jerusalem has not changed.
The Supreme Court case then will center on the question of executive versus congressional power on such an issue, according to John O. McGinnis, professor of constitutional law at Northwestern University who served as deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice from 1987-1991.
The court, McGinnis said, will first determine whether it is a political question, i.e. whether the court should decide who should decide such a question. If they rule that it is a political fight between the executive and legislative branches, they will leave them to that fight.
“Congress has its weapons—refusing to confirm people, not funding certain things—to force the executive to comply,” McGinnis said. “The executive can resist.”
In such a case, the plaintiff will “lose” in that the court will not even make the decision, and the president’s standoff with Congress will continue. But the second possibility is that the court will rule that it is, in fact, a constitutional issue and thus that they can decide who is right.
McGinnis laid out the basics of the two arguments. The executive branch will argue that “the Constitution has a clause saying the president shall receive ambassadors. And from that, some might interpret, it’s really up to the president to decide recognition of nations. And you might say well, in deciding recognition of nations you’ve got to decide what those nations are and what their borders are. When you receive an ambassador from somewhere, you decide, well: where is that somewhere?”
“The argument for Congress,” he continued, “is that Congress, for instance, establishes how to get passports, all those sorts of things. So then this [case] is necessary and proper to their operations of the State Department.”
The signing statement in itself, he said, is not a legal defense, because a signing statement merely expresses the directive wishes of the president—he’s defending his territory, essentially.
Christopher DeMuth, a senior fellow at the American Enterprise Institute, agreed. “Obviously from the circumstances of the case it is about more than a Bush signing statement—Obama must agree with the policy,” he said. It is also DeMuth’s opinion that the president’s constitutional responsibilities involving foreign affairs would likely place this within his purview.
McGinnis stressed that the court will not actually be ruling on the issue of Jerusalem, only on who gets to make that decision.
“It just so happens that it’s also on this rather explosive issue of Jerusalem and Israel,” McGinnis said. But McGinnis acknowledged that if the statute is ruled unconstitutional, that would apply to the law ordering the American embassy to be moved from Tel Aviv to Jerusalem as well. That’s why, he said, “I think people who are eager for congressional power would like this to come up in some other context.”
Hadley Arkes, professor of law and American institutions at Amherst College, wrote in an email that, for those who would want Congress to make the determination, “the problem is that the recognition of foreign governments goes hand in hand with military strategy (recall the decision on whether to recognize the government of [Admiral Jean-Francois] Darlan in North Africa before the North African landings in World War II). And the judges understood at the time that there was no way an unelected judge could get in the way here, taking control of the situation from an elected President and the political branches. What is involved here is a principle that runs deep in the American regime—perhaps the deepest principle, running back to the revolution: that the security of the American people cannot be put into the hands of officials, whether in the Parliament in Westminster, or unelected judges, who bear no direct responsibility to the lives that are at stake.”
If it is ruled a political question, Arkes said, Congress would, as McGinnis indicated, fight it out with the executive branch. And the powers at the disposal of Congress to do so should not be underestimated.
“Congress has levers far more powerful than those available to the courts in enforcing judgments,” he said. “We need only recall the way that Congress withdrew support for the Administration in Cambodia and Vietnam in 1975 and hastened the collapse of the American effort in Indochina. Those powers are no less formidable today.”
But there is certainly a question as to whether there is the will on the part of Congress to attempt to force the president’s hand. If not, then even if the court rules that the two branches must fight it out, the unlikelihood of Menachem getting “Israel” put on the passport persists. If the court rules the statute itself to be unconstitutional, Menachem will lose definitively and the case will set precedent on the issue.
(Seth Mandel is a writer specializing in Middle Eastern politics
and a Shillman Journalism Fellow at the Horowitz Freedom Center.)
